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The paper will elaborate on three procedural and preliminary questions that negotiators of the Code of Conduct in the South China Sea (COC) will encounter in time to come: (i) the nature of COC; (ii) COC as a negotiation between ASEAN and China or a negotiation among 11 countries; and (iii) the relationship between the Declaration on the Conduct of the Parties in the South China Sea in 2002 and COC to be signed in the near future.

11/09/2018 10:45:00

Summary

The paper will focus on 03 procedural and preliminary questions that negotiators of the Code of Conduct in the South China Sea (COC) will encounter in time to come. The first question concerns the nature of COC, as to whether it is a legally binding document or a political one. The second relates to whether COC negotiations should be a discussion between ASEAN and China, or between 11 countries. The last one is about the relationship between the Declaration on the Conduct of the Partites in the South China Sea in 2002 and COC to be signed in the near future. The paper is not aimed at providing an answer to the stated issues, but rather analyzing appropriate and inappropriate points, as well as implications of feasible solutions to each question. During the process, the international practices of COC and conventional laws will also be analyzed.

Nearly 15 years after the signing of the Declaration on the Conduct of the Partites in the South China Sea (DOC) in November 2002, [1] the ASEAN – China Foreign Ministers’ Meeting in Manila (Philippines) officially adopted a framework of the Code of Conduct (COC) [2] on 6 August 2017 to regulate behavior and activities in the South China Sea. [3] The framework is the initial accomplishment of a long implementation process of Article 10 in DOC [4] and was only achieved after recent regional tensions triggered by a country’s sea claim that does not conform to international laws. Little wonder, then, that this “event” is well received and captures attention of experts, although the framework of COC has yet to be announced.[5]

It is agreed that the framework will form the basis for further negotiations on the COC. With a long coastline running along the South China Sea and sovereignty over disputed and illegally occupied islands, Vietnam’s interests are closely linked with COC negotiations. The paper will mention three issues, which take the form of questions concerning COC negotiations, including: (i) the (legal) nature of COC, (ii) negotiation methods and mechanisms and (iii) the relationship between DOC and COC. Before elaborating on these questions, the paper will examine some theoretical aspects and international practices in the signing of a code of conduct.
Some theoretical issues and international practices of the code of conduct
The term “code of conduct” was first popularized in the 1970s to describe documents containing a set of rules and norms to regulate the behavior of nations, entities or individuals in a particular field or area.[6] From an international law perspective, the name of a document does not determine whether it is a treaty and legally binding or not. [7]. Nonetheless, international and ASEAN practices still draw a relative distinction in legal values between a “code of conduct” and a treaty. However, due to the nature of the document or for the sake of convenience, a treaty is still referred to as a “code of conduct”. The difference between non-binding political documents[8] and binding treaties is that: violation of the former only leads to political consequences, normally in the form of criticism from other parties, while violation of one or more legal provisions of a treaty means a country have to accept international liability for any legal consequences [9] (including the obligation to stop the breach and take corrective measures). ).[10]

In the first case, when referred to as a Code of conduct (with the first letter capitalized), the document is normally non-binding and considered as a “soft law” document [11], which contain recommendations, intentions, political will or policy statements of the parties. Some such documents have been developed within the framework of the Food and Agriculture Organization of the United Nations (FAO). [12] A good example is the 1995 Code of Conduct for Responsible Fisheries. [13] The non-binding nature of the 1995 FAO Code of Conduct is specified in clause 1 of Article 1 on "Nature and Scope", which states that "this Code is voluntary". In addition, it is recognized that in the entire Code of conduct for fisheries, “should” – a word of recommendation – is consistently used while “shall”, which is conventionalized to denote a binding regulation in treaty negotiations [14], is avoided. Another telling example is the Code of conduct for the suppression of piracy and armed robbery against ships in 2009 [15], which has been amended and is now known as the revised Code of conduct for the suppression of piracy, armed robbery against ships and illicit maritime activities in the Western Indian Ocean and the Gulf of Aden in 2017. [16] Both documents were developed under the auspices of the International Maritime Organization (IMO). The revised Code of Conduct in 2017 very much resembles a treaty. More specifically, in addition to the preamble and operative provisions, there are also provisions on dispute settlement and regulations on validity.[17] However, in the document, the word "intend" is used to refer to the behavior of the Parties. The non-binding nature of this document is clearly stated in Article 19, "Nothing in this Code shall: (a) create or form a binding agreement, except for Article 17 .... Indeed, as the only exception, Article 17 can still hardly be considered as a specific obligation.[18]
Two weapon-related political documents adopted within the framework of European Union (EU) and Central American Integration System (SICA) do not have their recommendation value (legally non-binding) specified. There are also some noteworthy points in their wordings. While both “should” and “will” are seen in the European Union Code of conduct on Arms Exports in 1998 [19], the Code of conduct of Central American States on the Transfer of Arms, Ammunition, Explosives and other related materials in 2005 [20] uses “shall” and the phrase “express [...] determination”.
On the other hand, in practice, the phrase “code of conduct” (capitalized or not) is also used as a generic term to describe a document or a set of documents that regulate the behavior of nations, including international treaties. The 1995 FAO Code of Conduct for Responsible Fisheries again sets a prime example. The Code was principally the outcome of the International Conference on Responsible Fishing held in Cancun (Mexico) on 06-08/5/1992 (commonly known as the 1992 Declaration of Cancun), which called upon FAO to develop “an international Code of conduct on responsible fishing”. [21] It is worthy of note that “The International Code of conduct on Responsible Fisheries” as stated in the 1992 Declaration of Cancun also includes the Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, approved in 1993 within the FAO framework (referred to as the 1993 Compliance Agreement) [22] – an international treaty.[23] In other words, according to the Declaration of Cancun, an international code of conduct encompasses both legally binding and voluntary documents. The use of the generic term “code of conduct” to denote an international treaty has also been observed in the context of ASEAN. It has been long since the documents of ASEAN conferences started to note the Treaty of Amity and Cooperation in Southeast Asia as a code of conduct to regulate the relationship between Southeast Asian countries...”.[24]

Three questions concerning the procedure for COC negotiations in the South China Sea
An international treaty or a political document?

With such diversity of international practices, it is difficult to say at this point whether ASEAN and China are negotiating a treaty or not as the intentions of the parties need to be taken into consideration. So far, according to the press, after the adoption of the COC framework, there has yet to be a consensus among the negotiating parties on the nature of COC [25]. The question is that: is COC a binding treaty or merely a political document?

It is not unjustifiable to argue that priority should be given to the content of COC while its name and nature can be decided later on. There is no doubt that the main content is where the intentions of the parties are most clearly expressed and is always more important than the form: [26] a document may have the name of a treaty but contains vague and unclear contents or recommended rules.[27] Further and more importantly, though, the absence of a universal enforcement mechanism (on a global scale)[28] in international laws means the enforcement of both political documents and treaties, as well as international liability depends crucially on the “goodwill” of the parties involved.[29]
However, a basic principle of law is “bad faith is not presumed”.[30] According to international practices, countries normally make the utmost effort to fulfill their international obligations and commitments, albeit in the light of their own views and interpretations. Those failing to fulfill their obligations and commitments will often invoke circumstances in international laws that permit the non-fulfillment of treaties.[31] It is no coincidence that negotiators have always been careful in choosing the right words to accurately represent the intentions of their country concerning the nature of the document, as can be seen from the aforementioned international practices regarding Codes of conduct.

Moreover, for the purpose of ensuring the enforcement of a signed treaty, countries also set relatively strict rules on decision-making authority, as well as internal steps and procedures for treaty negotiations. ASEAN countries and China are no exception as all of them have constitutional provisions for treaty-signing authority,[32] which are further concretized by legal documents and developed within the context of ASEAN.[33] For instance, Chapter II of Vietnam’s Law on International treaties in 2016 specifies decision-making authority and tasks of state agencies in the preparation and negotiation, as well as signing and ratification, approval of or participation in an international treaty. China’s Treaty Procedure Law in 1990 also contains similar provisions.[34]

National laws, including those of ASEAN countries and China, suggest that the question concerning the nature of COC (legal or political) in the South China Sea need to be addressed right at the beginning as it will impact upon the implementation direction in time to come, both within each country and at the negotiating table. The early determination of the nature of COC is of great importance to ensuring compliance with each country’s relevant internal procedures and effective enforcement of the document after signing. Even if COC is a political document that is non-binding on the parties, the determination of its nature will still allow negotiators to choose the right wording to express their intentions at the negotiating table. 35
COC negotiations to be conducted between ASEAN and China, among 11 countries, or involving even more…?
The joint communiqué of the 50th ASEAN foreign ministers’ meeting affirmed the adoption of the COC: “We warmly welcomed the improving cooperation between ASEAN and China and are encouraged by the conclusion and adoption of the framework of a Code of Conduct in the South China Sea, which will facilitate the work for the conclusion of an effective COC on a mutually-agreed timeline.”[35] The adoption of the COC framework has also been mentioned in the same manner in the statement of the Chairman of the ASEAN – U.S ministerial meeting.[36] Meanwhile, According to the statement of the Chairman of the ASEAN – China ministerial meeting, “ASEAN member states and China have arrived at a single draft COC negotiating text, which will be a living document and the basis of future COC negotiations.”[37]
The difference in the acknowledgment of the adoption of the COC framework, albeit seemingly negligible, may indicate differing approaches between ASEAN and China as to how COC negotiations should be organized in time to come. More specifically, ASEAN appears to consider COC as a document to be negotiated between ASEAN as a whole [38] and China, while China seemingly holds the view that COC will be signed by 11 countries, including all ASEAN member states and China.[39]
The ASEAN approach to COC negotiations has legal, political and practical foundations. The legal base for this approach could be the ASEAN Charter, which came into force in 2008 and is aimed to maintain peace, security and stability; stimulate sustainable development to protect the regional environment, sustainable exploitation of natural resources and high quality of life for all. [40] In terms of politics, the ASEAN community officially took shape in 2015 with political-security and economy as two of its three pillars.[41] The handling of the South China Sea dispute, especially through the development of the COC, exerts an influence on the political-security environment of ASEAN, the regional peace and stability, as well as the development of each ASEAN member state and the community as a whole. It would therefore be entirely appropriate to conduct COC negotiations between ASEAN as a bloc and China. So far the signing of documents between ASEAN as a bloc and external partners has been a very common practice. A 2015 study has listed no less than 175 documents signed by ASEAN and its partners, with the majority of which refer to ASEAN as a bloc (all ASEAN countries).[42] These documents take various forms ranging from political declarations, action plans to treaties, and regulate cooperative relations in various fields such as economics, socio-culture, and political security, for which DOC is an example.[43] According to international practices,[44] the development of codes of conduct is often linked with regional (EU or SICA) or international (FAO, IMO) organizations. Notably, the IMO conference on the development and adoption of the revised Code of Conduct on the suppression of piracy, armed robbery against ships and illicit maritime activities in the West Indian Ocean and the Gulf of Aden in 2017[45] was attended by not only representatives from countries in the area, but also, as observers, extra-regional countries [46] and international organizations [47], which have supported the fight against offences at sea in the area. Given the importance of the South China Sea and the growing relationships between ASEAN and other dialogue partners besides China, the question is that whether it is possible for the partner countries interested in COC to be present, even as observers, during the negotiations or not?

In terms of form, China’s approach to COC negotiations is entirely within international law: all ten ASEAN state members and China enjoy equal sovereignty and can participate in the establishment of a treaty. However, with further thoughts, there are at least two questions concerning China’s approach that demand an answer. First, why should COC negotiations be limited to just eleven countries? [48] Regardless of the definition of the South China Sea, there is no doubt that among ten ASEAN member states, there exist countries which are not contiguous to the South China Sea.[49] It would therefore be unjustifiable to assume that these member states share the same interests in the South China Sea and thus should have equal standing in COC negotiations. According to the final judgment of the South China Sea arbitration court on July 12, 2017,[50] the South China Sea will include international waters[51] wherein all states, with or without sea, enjoy particular freedoms, including freedom of fishing, freedom of navigation and aviation. In legal terms, extra-regional countries and ASEAN countries which does not border the South China Sea exercise equal rights to these freedoms. Moreover, with regard to economy, the South China Sea is of even greater importance to maritime nations with developed maritime trading, as one-third of global maritime transport passes through this area[52], which is worth USD 3,400 billion and accounts for approximately 21% of the global trade.[53] According to a recent study, 10 economies whose commercial value coming through the South China Sea accounts for the largest percentage of their total trade are: Vietnam (86%), Indonesia (85%), Thailand (74%), Singapore (66%), Malaysia (58%), Korea (47%), China (39%), Hong Kong (37%), Japan (19%) and Germany (9%).[54]
The second question concerns the bilateral relations between ASEAN member states assumed that the COC is negotiated between eleven countries (not between ASEAN and China). As suggested by its name, the COC is aimed to regulate behavior in the South China Sea, including disputed areas, to maintain peace and stability, and promote prosperity. Disputes with some ASEAN countries (including Vietnam, Malaysia, Philippines and Brunei) does not mean China is in conflict with all states bordering the South China Sea and all ASEAN countries. With the ruling of the South China Sea arbitration tribunal dated July 12, 1616, which rejected the claim of China's "nine-dotted line",[55] many disputes in the South China Sea now only concern ASEAN countries. These are disputes involving overlapping areas such as the extended continental shelf, for which Vietnam and Malaysia made a joint submission to the Commission on the Limits of the Continental Shelf in 2009 [56] (with an area related to Brunei), and the overlapping exclusive economic zone between Indonesia, Vietnam and Malaysia (see the following chart). Although these disputes are not the main culprit of escalating tensions in the South China Sea in recent years, to a lesser degree, the behavior of the parties in the disputed area, particularly law enforcement activities on fisheries in the overlapping EEZ, poses problems to bilateral relations between countries that needs to be addressed. Thus, the question is: Does the COC regulate behavior of ASEAN countries in disputed areas which have no connection with China?

Map of maritime zones and claims in the South China Sea after 12/7/2016[57]
DOC+, a brand new COC or COC and more?

Speaking at the 7th ASEM Foreign Ministers' Meeting in Manila on August 7, 2017, Foreign Minister Wang Yisaid: "China and the ASEAN countries will continue to earnestly promote the COC consultation under the full implementation of the DOC framework, and formulate a set of regional rules that we all recognize. We have shared aspiration, and the final COC will be an upgraded version of the DOC.”[58]
The conducting of COC negotiations under the implementation of the DOC framework perhaps will not arouse controversy [59] as the COC has already been set out in Clause 10 of the DOC.[60] However, the perception of the COC as an upgraded version of the DOC would raise many questions. What does “upgraded” exactly mean? In terms of content or form? It would be unsatisfactory should only the form of the DOC be upgraded from a political document to an international treaty, while the content remains unchanged. Recent developments suggest that the DOC is losing trust for having failed to prevent escalating tensions caused by activities that disrupt the status quo, such as sea encroachment and artificial island construction,[61] or activities which threaten regional peace, security and stability like the militarization of occupied positions in the South China Sea.[62]

At this point, however, the content of the COC proves to be of the greatest import. One of the most important issues that the COC needs to address is the prevention of activities that undermine trust and threaten regional peace, security and stability. The COC will have to, at least, be able to handle problems triggered by current changes in the status quo in the South China Sea. Notably, China not only asserts the legitimacy of artificial land construction, sea encroachment militarization, and installation of military equipment in locations it occupied in the South China Sea, but also refers to these activities as the implementation of "self-preservation and self-defence" - a right granted by international law to sovereign states.[63] There is no need to delve into how China understands the limits of self-defense,[64] China's invocation of the right to "self-preservation" to justify its militarization may be, as one scholar has commented, "potentially dangerous because it degrades existing legal regulations by invoking an ambiguous notion that knows no specific legal limits. "[65] In addition, China claims its construction on occupied positions in the South China Sea to be aimed at providing public services, including search and rescue activities, and allowing better compliance of China’s obligations.[66] Perhaps, COC negotiations will make an appropriate forum to discuss sea encroachment and artificial island construction in the South China Sea, as well as provide the legal basis for preventing the use of these military facilities according to dangerous doctrines on the use of force in international relations, and to facilitate the utilization of these constructions for public interests.

On the other hand, the legal context in the South China Sea has also changed with the Decision of the South China Sea Arbitration Tribunal dated 12/7/2016.[67] The verdict has imposed an upper limit to China’s claims in the South China Sea and thus partially clarified the maritime area of nations bordering the South China Sea and waters outside national jurisdiction.[68] The new legal context opens up opportunities and highlight the need for cooperation among nations bordering the South China Sea as well as between regional and extra-regional states that have interests in the area according to the United Nations Convention on the Law of the Sea in 1982.[69] COC negotiations will make a good forum to specify the scope and content of such cooperation.

If the COC can demonstrate the qualitative changes occurring in real life as well as in the legal context mentioned above, it is not merely a "DOC+" or "upgraded DOC" as stated by the Chinese Foreign Minister, but rather a "brand new COC" that suits the current situation of the South China Sea.
Finally, another noteworthy point is that the Joint Statement of the 50th Foreign Ministers’ Meeting have mentioned a "Code of Conduct in the South China Sea." [70] Such linguistic expression indicates the indefinite nature of the COC, either in its character or name, or both. At the same time, such an approach also raises the possibility that the COC will not be the only document made between ASEAN and China. There are a factual basis [71] and international practices [72] to suggest that the COC is neither the only instrument nor the ultimate goal of ASEAN and China in the South China Sea.

Conclusion

Procedures always play an important role in the smooth and efficient organization of multilateral conferences. COC negotiations are no exception. The paper focuses on the identification of three preliminary and mainly procedural issues to face COC negotiations in time to come. However, the paper is not aimed at providing an absolute answer to these questions, but rather looking at different options for handling the issues and offering preliminary assessment of the appropriate and inappropriate points, along with the implications of each option. Nevertheless, it still lies with politicians and policymakers of ASEAN Member States and China to select an option based on the situation of each country and its own assessment of the current state of the South China Sea, including changes in real life and in legal context. Still, for ASEAN Member States, including Vietnam, the decision in this respect should be able to “maintain the centrality and proactive role of ASEAN as the primary driving force in its relations and cooperation with its external partners in a regional architecture that is open, transparent and inclusive”.[73]

Nguyen Dang Thang, Faculty of International Law, Diplomatic Academy of Vietnam. The paper reflects the personal view of the author based on publicly available materials and published studies, including those of Nguyen Thi Thanh Ha and Nguyen Dang Thang, "Some Thoughts on the Code of conduct in the South China Sea "in Dang Dinh Quy (ed.), “Searching for a Solution for Peace and Justice in the South China Sea, Hanoi, Publishing house.. The World, 2015, pp.179-203; and Ha Tt Nguyen and Thang Nguyen Dang, "The Code of Conduct in the South China Sea: The International Law Perspective", International Studies, Vol.24 (2011), 97-132. All articles and web pages were last checked on 25/8/2017. This article is published in the Journal of International Studies (Tạp chí Nghiên cứu Quốc tế), Diplomatic Academy, No. 3 (110).

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